Law as a Method of Destruction: Dismantling Indigenous Land Rights and Protective Institutions in Brazil

Reporting on her 2016 official visit to Brazil, Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz declared that “[t]oday, indigenous peoples face more profound risks than at any time since the adoption of the Constitution in 1988.”[1] Brazil’s largest indigenous group, the Guaraní-Kaiowá, have and continue to suffer large-scale displacement and dispossession from their ancestral lands in the state of Mato Grosso do Sul. Encroaching large-scale agribusinesses and private landowners grab lands, transform forests into farms, and reap huge profits from agriculture exports produced on Guaraní lands. At the same time, farmers entangle indigenous representatives in decades-long legal battles over the land’s title to stave off official demarcation of lands as indigenous. Some demarcation disputes have resulted in violent clashes between private farmers, public officials and indigenous peoples.

The Guaraní-Kaiowá communities experience devastating consequences as a result of the land grabs and the ongoing violence of state-sponsored settler colonialism. To the Guaraní-Kaiowá, “land is life;” without the land, communities lack access to adequate food, water, shelter, healthcare, education and other necessities. In addition to skyrocketing suicide and childhood starvation rates, Guaraní communities are targets of violent attacks, forced removals, and dozens of assassinations of leadership. Alarmingly, the Guaraní-Kaiowá’s population has dropped from 400,000 to only 50,000 people, motivating community leaders to call this protracted conflict a “silent genocide.”[2]

As in many unfolding processes of mass atrocity, the law has played an integral role in facilitating the systematic destruction of the Guaraní-Kaiowá. Although article 231 of Brazil’s Constitution guarantees indigenous groups the collective rights of return to—and occupation and use of—their traditional lands in line with international obligations, public and private sector interests have prevented the Guaraní-Kaiowá from realizing these rights. According to Tauli-Corpuz, the law has been used to obstruct, rather than to guarantee, indigenous peoples rights in Brazil.[3] The agribusiness sector wields enormous political power in Brazil, and the ruralista caucus (“Agricultural Parliamentary Group,” or “FPA”) has used its influence to roll back not only environmental and food production regulations, but also constitutional guarantees of indigenous peoples to original lands. Indeed, the FPA supports President Michel Temer’s government while funding a massive campaign to all but eliminate indigenous land rights. In direct contravention of its international human rights treaty obligations, the state has enacted laws, passed executive decrees and issued judgments to dismantle protections of ancestral lands and indigenous peoples.

For instance, on July 20, 2017, the President approved Union Attorney General’s Opinion 001/2017, which binds all federal public administrative agencies to limit indigenous rights to demarcation in ways that do not adhere to international treaty obligations or regional human rights jurisprudence. One limitation is the application of the “temporal framework” doctrine (“tese do marco temporal”), a judicial thesis that denies indigenous peoples the right to ancestral lands if the community did not occupy and control those lands at the time the 1988 Brazilian Constitution was promulgated. Given that prior to 1988 most indigenous communities were forcibly removed from their lands in a period of military dictatorship in which the state denied legal capacity to indigenous peoples, such a doctrine severely curtails the constitutional guarantees of indigenous peoples to their original lands. Application of the temporal framework doctrine would affect 748 administrative demarcation processes presently in progress across the country.

Additionally, several proposed bills in Congress further threaten to undo protections of indigenous rights in Brazil. One of the most precarious legislative proposals is Constitutional Amendment Bill 215 (“PEC 215/2000”). If passed, PEC 215/2000 effectively would stop indigenous land demarcations, and would permit new economic and “development” activities, as well as rural settlements, on indigenous lands without free, prior and informed consent of indigenous communities as required under international law.

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) includes the clearest and most advanced articulations of the FPIC requirement under international law.[4] Although UNDRIP is non-binding, the Declaration serves as a strong, interpretive guide to determine the content and scope of indigenous rights in international law.[5] Located under several articles of the UNDRIP, FPIC again is derived from and grounded in the rights to self-determination, culture and the use of traditional lands, territories and resources.[6] Brazil also is obligated inter alia as state party to the International Labour Organization’s Convention No. 169 (“ILO No. 169”) to uphold these rights.

Similar to article 6 of ILO No. 169, UNDRIP’s article 10 declares FPIC rights in the case of relocation.[7] Article 11 specifically requires FPIC with regard to historical and archeological sites.[8] Article 19 calls on states to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”[9] Moreover, article 29 calls on states to institute FPIC for land and resources, and article 30 requires FPIC for military activities.[10] Finally, article 32 declares that states receive “free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with development, utilization or exploitation of mineral, water or other resources.”[11]

Since the Temer government came to power in 2016, only one demarcation claim out of a total of 241 claims has been granted. Moreover, the Brazilian government has cut the budget of the federal agency addressing indigenous issues, the National Foundation of the Indian (“FUNAI”), by more than 50 percent, crippling the organization and greatly impeding its work. Despite protests, the Temer government first appointed retired Army General Franklinberg Ribiero de Freitas as President of FUNAI, a move that hearkens back to genocidal policies and practices of the dictatorship of the 1970s and 1980s. Because the General was not cooperating with the ruralista caucus, the government removed and plans to replace Franklinberg Ribiero from the FUNAI presidency.

These and other measures constitute part of a legal offensive against indigenous peoples in Brazil. Such regressive policies and aggressive actions all come at a time when indigenous peoples’ very existence as peoples is at serious risk. Without indigenous representation at national levels of government, or absent meaningful consultation with communities, Brazil continues to perpetrate serious human rights abuses and facilitate ongoing, escalating atrocities against its original peoples. And in the face of democratic backsliding in the country, the international community must pressure Brazil to use the law to protect—rather than to destroy—indigenous peoples, including the Guaraní-Kaiowá.

[1] Report of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, on her mission to Brazil, A/HRC/33/42/Add.1, Thirty-third Session of the Human Rights Council, http://www.ohchr.org/EN/Pages/WelcomePage.aspx (last visited May 5, 2018).

[3] Report of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, on her mission to Brazil, A/HRC/33/42/Add.1, Thirty-third Session of the Human Rights Council, http://www.ohchr.org/EN/Pages/WelcomePage.aspx (last visited May 5, 2018).